Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

07 January 2013

Undercaffeinated Internet Link Sausage Makings

CHE has a disturbing, and amusing, piece on the differences between popular history and academic history, and why historians can't sell their rigorously researched and considered works to the public. I suspect that there's a much simpler explanation: The tyranny of the Chicago Manual of Style and its effect on documentation. Put another way, it's a lot easier to ignore a footnote/endnote or hyperlink in a narrative if one is not reading to criticize than it is a CMS-complaint author-date-page parenthetical... even though the latter is much easier to typeset. Academics have reacted to this by moving too much of the narrative aside that "belongs" in a footnote into the main body of the text as footnotes have disappeared; this has resulted in body text that is constantly stopping to go off on a tangent or to hedge itself, which is simultaneously less readable and less academically rigorous.

Application of this principle to legal writing, with inline citations in an even-more-distracting form than that specified by the CMS, is left as an exercise for those who actually see a correlation between bad writing and bad law... such as the Second Amendment, with writing that was bad writing in the eighteenth century resulting in needless ambiguity exploited by lawyers. One might well argue that Mr Madison, Mr Jefferson, and their friends killed those children at Sandy Hook with bad writing; and one would not be far wrong. I'm not talking about the grammatical oddities of the Second Amendment, either; as confusing as the precatory clause is, it is consistent with the practice in serious writing in the mid-eighteenth century. No, the real problem is in vocabulary and sloppy use thereof: Is "people" a collective organizational noun, a collective individual noun, or a noncollective individual noun? The Bill of Rights uses it in all three senses, without enough context to narrow things down; and at other points in the Bill of Rights (and the Constitution as a whole), all three senses of "people" are used. Consider these examples:

Congress shall make no law respecting... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Amd. I) (collective organizational and/or collective individual)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... (Amd. IV) (noncollective individual with overtones of collective individual)

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (Amd. X) (indeterminate)

Even though these ten (twelve, actually, as two failed of ratification) amendments were put forward at the same time, they weren't consistent across each other... or, as the First and Fourth Amendments demonstrate, within themselves. That's bad writing because it allows — indeed, encourages — cross-referencing of meanings leading to absurd results, such as ignoring the precatory clause of the Second Amendment and concluding that the right to bear arms is clearly an unrestricted, noncollective individual right because in other places, "people" must be a noncollective individual noun to have any effect.

Some might argue that this kind of ambiguity is the best defense against changing interpretations that meet only the needs of those currently in power, because it includes more than one interpretation that wise men (remember, women had no governance role) will interpret expansively. That sword at best cuts both ways, as the sorry history of Lochner and the "freedom of contract" theory preventing government from employing the inherent powers of any government to create a free and fair marketplace demonstrates. The poor writing is also easily avoidable; for example, the Tenth Amendment could reserve those rights "to the people individually and together."

What's that old canard that ends "... but words can never hurt me" again?

Of course, all world-building is ultimately about language, in at least some sense — even, and perhaps especially, if you're a nerd. I don't disagree with much of the linked essay, but it is vastly too narrow: Consider, for example, that the "best-sellers" of the sixteenth century were almost uniformly works that would have been shelved by overenthusiastic librarians right along with LotR, like Amadis of Gaul and the other occupants of Don Quixote's library.

Speaking of libraries, here's a piece on publishers enabling libraries to do their jobs with electronic books that bears some careful consideration. The issue here is not the presence/absence of lawyers at the negotiating table; it is the presence/absence of zero-sum negotiators (which is to say MBAs) anywhere in the negotiation-and-oversight process. Even lawyers will knuckle under when the client says "I need it Tuesday and good enough, not Thursday and perfect." MBAs, however, won't (I'm sure there are individual exceptions out there, but my experience has been distressingly uniform).

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

Approximate Views

(page impressions since the last time the server's counters were reset, at present early 2007)